Notable commentary on "Christopher Dorner and the California Death Penalty"

Noted legal commentatory Jeffrey Toobin has this notable new commentary at The New Yorker on a high-profile murder case that seems to have resolved itself in the state with a highly-dysfunctional capital punishment system.  Here are excerpts:

At this moment, it looks like Christopher Dorner, the ex-L.A.P.D. officer who’s been terrorizing Southern California for the past week, died on Tuesday in a confrontation with his pursuers.  A San Bernardino deputy sheriff was also killed; Dorner has already been charged with the murder of another officer, and is alleged to have killed two other people. In a lengthy post on Facebook last week, Dorner said that the motive for his rampage was an unjust dismissal from the L.A.P.D. several years ago.

If Dorner didn’t die (and is later caught), we can be sure that one or more district attorneys will seek to have him executed. And thus the nation would be forced to confront one of the biggest fiascoes in the American legal system — the death penalty in California.

It’s possible for reasonable people to hold differing opinions on the death penalty. (Over the years, I’ve had several different ones myself.) But what’s going on in California represents the worst of all worlds — a massively expensive Potemkin operation in which hundreds of people are sentenced to death and no one is ever executed....

There are several reasons that the system in California has ground to a halt. The 1978 voter initiative that restored the death penalty sent all appeals directly to the California Supreme Court, bypassing the intermediate appeals courts.  This has created a huge backlog at the state’s highest court.  Moreover, challenges to the method of execution have led to a de facto moratorium on executions since 2006.  That impasse continues.

The root of the problem, in California and elsewhere, is that, as the Supreme Court has often said, death is different.  The finality of capital punishment requires special safeguards against errors in the judicial process.  But if a state takes those safeguards seriously, as California does, the process can become never-ending.  Death-row exonerations, through DNA evidence and other means, have provoked even greater scrutiny of the cases of those who remain.  And the state’s oxymoronical quest to kill people in a humane fashion turns out to be difficult indeed.  All of this leads to delay.

And to enormous expense: many studies have shown that the death penalty is far more costly to taxpayers than a maximum sentence of life in prison without the possibility of parole....

If Dorner is dead, few will mourn him.  But anyone who has thought that his murderous spree — or the next spectacular California crime — would lead to a restoration of executions is very much mistaken.  The death penalty is already over in California in fact; it may take a little while longer to be gone in law, too.

I suspect lots of different readers will have lots of different reactions to this commentary (including to some of the more abolitionist-leaning sections I have not reprinted above).   Ever the iconoclast, I will make the point that the Dorner case provides another great example, in my view, of the kind of  "national" mass murder case which could and should be prosecuted (exclusively?) in federal court if he were still alive and responsible officials decided his case should be subject to a capital charge.

Recent and older related posts on use of the federal death penalty:

• The federalization of the death penalty
• More support for an exclusively federal death penalty
• Context-free ruminations on the federal death penalty
• A poster child for the (federal) death penalty?
• The federal law gap in the NJ death penalty report
• The federal death penalty in NY and elsewhere
• Ashcroft's death penalty "legacy"
• "Cruel and Unusual Federal Punishments"
• "The Racial Geography of the Federal Death Penalty"
• Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions
• Making the case for the use of the federal death penalty